Citation Nr: 0506861
Decision Date: 03/10/05 Archive Date: 03/21/05
DOCKET NO. 03-09 982 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
J. Connolly Jevtich, Counsel
INTRODUCTION
The veteran served on active duty from June 1969 to December
1971.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an August 2002 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Waco, Texas, which granted service connection for diabetes
mellitus and assigned a 20 percent rating; denied service
connection for PTSD; denied service connection for
hypertension; denied service connection for diabetic
retinopathy; and denied service connection for a skin
disability. The veteran limited his appeal to service
connection for PTSD.
In an August 2003 rating decision, the RO granted an earlier
effective for service connection for diabetes mellitus, but
denied an increased rating. The veteran did not initiate an
appeal.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify you if
further action is required on your part.
REMAND
In this case, there is conflicting evidence as to whether the
veteran has a diagnosis of PTSD. In November 2001, a VA
outpatient note by a social worker indicated that the veteran
had PTSD. Subsequent treatment records indicated that the
veteran had depression, not otherwise specified, rule out
PTSD. In February 2002, additional testing was performed by
a psychologist showed that the veteran did not have PTSD.
However, in June 2003, another VA psychologist indicated that
the veteran had possible PTSD. The veteran was supposed to
be scheduled to the "PCT" team for additional assessment to
rule out PTSD. Although additional treatment records were
obtained, there is no record of this referral.
The agency of original jurisdiction (AOJ) originally denied
this claim on the basis that there was no confirmed stressor.
In the supplemental statement of the case, the claim
continued to be denied on the basis that there was no
confirmed stressor or diagnosis.
Pursuant to the Veterans Claims Assistance Act of 2000
(VCAA), additional action is required in this case.
The veteran has requested a VA examination. In addition, VA
medical records dated after July 2003 were not obtained from
the El Paso VA Medical Center. These records should be
obtained. The veteran should be afforded a VA psychiatric
examination to specifically determine if the veteran has
PTSD.
Pursuant to 38 C.F.R. § 3.655, when a claimant fails to
report for an examination scheduled in conjunction with an
original compensation claim or any other original claim, the
claim shall be rated based on the evidence of record. When
the claimant pursuing an original, reopened or claim for an
increase without good cause fails to report for examination,
the claim will be denied. This Remand serves as notice of
the regulation.
The veteran maintains that he served in combat and was
exposed to stressors. In support of his claim, he submitted
copies of his military awards to include a Bronze Star Medal
which stated that he had been in a "combat environment."
The veteran has presented stressors and no attempt has been
made to verify them. The veteran served in the 478th
Aviation Company, 101st Airborne Division, and in the 159th
Avn. Battalion (Ambl.). The veteran has reported some
stressors which allegedly involved civilians which are not
the type of stressors which can be verified. However, he has
also reported stressors which may be able to be verified.
The veteran maintains that while transporting new recruits in
February 1970 between Danang and Freedom Hill, they were
ambushed with tear gas and enemy fire. He also reported that
his unit was frequently under shelling and mortar attacks and
he was always exposed to the wounded and dead bodies. He
also related that a soldier he knew committed suicide by
playing Russian Roulette.
The veteran is hereby notified that he should submit evidence
which corroborates his account of stressors in Vietnam. He
should specify the name of the individual who committed
suicide.
Accordingly, this issue is REMANDED to the AOJ for the
following development:
1. The veteran should be requested to
identify the name of the individual who
committed suicide while playing Russian
Roulette.
2. The veteran's VA mental health clinic
records the El Paso VA Medical Center
from July 2003 onward should be obtained.
3. The AOJ should schedule a VA
examination with a psychiatrist to
specifically evaluate whether the veteran
has PTSD. The diagnosis of PTSD should
be ruled in or ruled out. If the
psychiatrist's diagnosis supports PTSD,
all stressors leading to such diagnosis
must be identified in the medical
opinion. The examiner must establish his
credentials (a medical degree, etc.).
4. If the VA psychiatrist diagnoses
PTSD, then the AOJ should attempt to
corroborate the veteran's claimed
stressors through the appropriate
channels, to include the U.S. Armed
Services Center for Research of Unit
Records (CRUR). The AOJ should provide
CRUR with all pertinent information, to
include copies of personnel records,
units of assignment, and stressor
statements. The veteran served in the
478th Aviation Company, 101st Airborne
Division, and in the 159th Avn. Battalion
(Ambl.). The AOJ should specifically
request CRUR to verify whether the
following stressors can be
verified/occurred: (1) the veteran
maintains that while transporting new
recruits in February 1970 between Danang
and Freedom Hill, they were ambushed with
tear gas and enemy fire; (2) whether the
veteran's units were under shelling and
mortar attacks by the enemy; and (3) if
the veteran provided the name of the
soldier he said committed suicide, if
this individual was in either of the
veteran's units and was killed.
If upon completion of the above action the claim remains
denied, the case should be returned to the Board for further
appellate review. The appellant has the right to submit
additional evidence and argument on the matter or matters the
Board has remanded to the regional office. Kutscherousky v.
West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.43 and 38.02.
_________________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2004).